WikiLeaks and the First Amendment

April 3, 2011
Bradley Manning
May Face Death Penalty…

Julian Assange might be hostile to Jewish interests, but I have some reservations about prosecuting him. For one thing… the Wikileaks were very good for Israel because it exposed how the United States had double crossed their ally… not just through Obama, but through the CIA who lied to G W Bush. I don’t like Assange, but he does a public service. If these classified documents were that vulnerable then there is something very wrong with the leadership in our country. It also highlights to me some of the problems with “Don’t Ask Don’t Tell”… which created distrust in the army. The military should accommodate humanity and it’s human nature for men to feel threatened by Homosexuality…. we are not Spartans and we don’t have a pure military culture like the Greeks. To deny any correlation between power and sexuality is a poor decision by any army… and yet we did it. The fact that a Gay man got into the position he did so that he could leak such information, highlights the problem.  Further… on a technicality… it appears Julian Assange is innocent….

WikiLeaks Founder Julian Assange at a press conference during a court appearance in London, on February 24, 2011. (Photo: Andrew Testa / The New York Times)
Wrapping himself in the First Amendment, Julian Assange recently told “60 Minutes” that “our founding values are those of the American Revolution,” those of Jefferson and Madison. Assange may not know that our Constitution was written in secret in Philadelphia, behind closed doors; there were no leaks. But the most imminent First Amendment question confronting WikiLeaks is whether it or Assange can successfully be prosecuted for violation of the Espionage Act. Sen. Dianne Feinstein, in an op-ed piece in The Wall Street Journal, aggressively interpreted the 1917 Act and demanded prosecution. The act’s virtually unintelligible provisions arguably make it a felony not just to collaborate with a spy, but to publish information “relating to the national defense.” However, prosecuting a publisher raises serious First Amendment issues. In the 1971 Pentagon Papers case, the Supreme Court decided that the government could not prevent The New York Times from publishing classified Defense Department documents. The Nixon administration then tried to prosecute the leaker, Daniel Ellsberg, but not the newspaper. In fact, no publisher has ever been prosecuted under the act.
We don’t know whether WikiLeaks was simply the passive recipient of classified documents that came in “over the transom” as we used to say. If it was, that’s like the Pentagon Papers case. To be sure, publicizing documents that demonstrate high-level official lying and duplicity, as Ellsberg did, is different from the wholesale dumps that WikiLeaks threatens. Disclosing government secrets just because you can is not necessarily in the public interest.
In recent months, WikiLeaks seems to be moving away from anarchism toward journalism, perhaps motivated by the wish to seek shelter under the First Amendment umbrella. The WikiLeaks site has changed its tune somewhat, now repeatedly emphasizing that its “journalists” review leaked material and exercise some judgment about what it puts in the public domain. It has not foresworn indiscriminate dumping or doctrinaire hostility to any government secrecy, but using responsible judgment would give it a better chance at First Amendment protection.
In deciding whether WikiLeaks would have a First Amendment defense, one question is whether it actively solicited the leaks, perhaps paying the leaker or providing software assistance to facilitate the leaks. Another is whether the information is of legitimate public interest. And whether a disclosure actually caused harm ought to be relevant. (No harm ever resulted from the publication of the Pentagon Papers; the government has not yet identified any specific harm from WikiLeaks disclosures.)
Actively engineering leaks of sensitive information of no legitimate public concern (e.g., the identity of a mole in another country’s government), causing actual harm, would subject WikiLeaks to a charge of conspiracy (always a prosecutor’s favorite). The government could avoid the First Amendment contention that mere publication can’t be made a crime. But a successful prosecution under the messy Espionage Act would remain problematical.
In a sense, WikiLeaks owes its existence to two gaps in First Amendment protection for speech and press freedoms, gaps created by unfavorable Supreme Court decisions.
First, the court decided, in a case that I lost (Houchins v. KQED, 1978), that there is no First Amendment right of access to government information. That is, unlike in some countries in which government transparency is constitutionally mandated, American citizens have no constitutional right to know what their government is up to. All we have is a not very strong statute, the Freedom of Information Act, with a lot of exceptions, including a broad exemption for documents relating to national security. To the extent that WikiLeaks informs us citizens what the government is doing in our name, it partially repairs this flaw in our constitutional protection for speech and press. With better access to government information, there would be less point to WikiLeaks.
Second, the court decided in 1972, in another case on which I worked for the losing side (Branzburg v. Hayes), that reporters have no First Amendment protection against compelled disclosure to a grand jury of their confidential sources. While many states have enacted “reporters shield” laws, Congress has thus far declined to act, and the latest WikiLeaks disclosures seem to have antagonized enough senators to torpedo any chance of enactment soon. The result is that reporters can’t honestly promise confidentiality to would-be whistleblowers. A source with sensitive information about government malfeasance can’t trust that a reporter will not be subpoenaed to spill the beans about who leaked the information. To the extent that WikiLeaks provides complete anonymity (as it promises on its web site, representing to prospective leakers that it has “never” revealed a source), it again partially repairs a gap in our First Amendment protection. If there were a meaningful shield law that reporters and would-be sources could rely on, WikiLeaks might be superfluous.
However the First Amendment issues play out, let’s hope our government’s hands are clean. We now know that President Richard Nixon’s “plumbers unit” burglarized Ellsberg’s psychiatrist’s office while he was on trial for violating the Espionage Act. An outraged federal judge dismissed the prosecution because of the government’s misconduct.
We have no evidence that the Obama administration was complicit in developing sexual misconduct charges against Assange after WikiLeaks made public thousands of classified military communications about the wars in Iraq and Afghanistan and sensitive State Department cables. It may be just a coincidence that, following upon the disclosures, friendly Sweden issued an extraordinary international arrest warrant seeking Assange’s extradition on a charge of failing to use a promised condom; there can’t have been many instances of using such heavy legal artillery for such a charge. Companies that supported the WikiLeaks site, like PayPal, Amazon and Visa, may have decided independently, without any government prompting, to withdraw their support. And hacker attacks on WikiLeaks servers may have been orchestrated by freelancers without any government encouragement. It would be really distressing to learn that our government was involved in any of this. Imagine the irony if any government complicity were established by secret government documents some day to be leaked through WikiLeaks.
via <—- link was taken down

….I wouldn’t call Sweden a good ally.  I believe they had their own reasons… perhaps they knew how hurtful the documents were to the Islamic world?

If he goes after Wikileaks too broadly using the notorious Espionage Act of 1917 and other vague laws, how is he going to deal with The New York Times and other mass media that reported the disclosures?


The Plot to Destroy the US Military

March 21, 2011

The USS Enterprise crackdown, like the firing of General McChrystal and the push to repeal “Don’t Ask, Don’t Tell”, completely ignore military realities for political objectives. A political military is also a useless military. Stalin’s purges of the Russian Army’s commanders left the Soviet Union completely unprepared for the Nazi attack. And the US military is being shaped along the same lines into a political military overseen by men whose chief credential is that they share the same politics as the politicians whom they serve.
A congressional report now says that the US military has too many white males at the top. Women are being kept out of the highest ranks because they lack combat experience. The report calls on the military leadership to “better reflect the racial, ethnic and gender mix of American society”. Which is code for affirmative action. If we didn’t have enough incompetents at the top, we can look forward to an affirmative action military in which the generals will be there because of the color of their skin or their gender, not because they’re the best at what they do.
…Such dramatic overhauls of the military usually take place because it is culturally out of step with the government. Would be tyrants, such as Turkey’s Erdogan, go after the military because it represents a barrier to absolute power. Others because the military is a barrier to their agenda. Sharon destroyed the once great IDF, purging its commanders and replacing them with political generals in order to push through his ethnic cleansing of the Jewish communities in Gaza, leading to the disastrous performance in the Second Lebanon War. The Democrats may not have anything as ambitious in mind, but they are determined to bring it culturally into line with their agenda. And that will destroy the military as anything other than a politically correct corps that will occasionally show up for UN peacekeeping missions. This did not begin yesterday. The left has hated the American military because it is a vehicle of national exceptional-ism. A strong military gives the country a sense of independence and confidence that many European countries have lost. During the Vietnam War, the Anti-War movement targeted the military as an institution and the soldier as an individual, in order to destroy America’s ability to take independent military action. Despite the abolition of Don’t Ask, Don’t Tell, the left has continued its vocal opposition to an ROTC presence on campus. When a wounded Iraq War veteran spoke at Columbia, he was booed and jeered. Their excuse is that the military “discriminates” against transsexuals. And when that barrier too is dismantled, then there will be something else. It’s not about gays or transsexuals, it’s about a deep rooted ideological hostility to the military. Not because of any specific policy, but because of what it represents as the defenders of a country and an order that the left would like to see destroyed.

Sorry Ladies, Not This Time

March 4, 2011

To put it more succinctly, not NO, but HELL NO!
I was ambivalent on the Don’t Ask Don’t Tell debate because quite frankly I have a great deal of confidence in the average military service member to deal with any agent provocateurs that would infiltrate in an attempt to garner some headlines and be a martyr to the gay/lesbian community, but allowing women to be in front line Infantry units is not only a bad idea it is a deadly one.
Infantrymen are the pointy end of the sword. I was one for 20+ years so it is something I can speak on with fairly certain amount of expertise. We refer to ourselves as bomb dodgers and bullet stoppers. In the words of one senior NCO I had somewhere during my career, he stated that fully 95% of all weapons and tactics designed by man were developed with one intent. That is to maim or kill the Infantryman. The other 5% that were not specifically designed for that purpose could be quickly modified to do so.
Being an Infantryman comes along with a certain amount of unique characteristics. These are not only physical, but mental and sociological. Yes, the Infantry is the largest collection of good ol boys you will ever find, but that is exactly what molds them into the most effective force. When you throw females into the equation that delicate balance is upset, and anything which upsets that balance leads to greater chance of injury and death for all. Surviving as an Infantryman even when nobody is shooting at you requires a great deal of effort.
A lot people will go on and on about the physical issue, which is very real and regardless of what a bunch of eggheads want to theorize about, it is immutable and undeniable, but beyond that there is thing called trust. Trust is the one intangible that receives very little attention, but without it no front line fighting force can function effectively.
Trust is a reason I was ambivalent on the DADT question. I knew gays in the military, and while they were not in Infantry units my contact came through the medics assigned to accompany us. I could have cared two flips less that you were gay as long as two truths remained. You could patch me up or get me to safety should something happen and you didn’t go around dressed in drag propositioning me or my men. In other words I could count on you to do your job and all that I had contact with could and did. If they didn’t they would not have been around my unit very long.
Women are a completely different story. Infantrymen are macho, testosterone laden, Alpha males complete with an entire set of codes related to ensuring the safety and protection of the weaker sex. In addition to adding to their list of worries about bombs and bullets you now want to add the stress of protecting what used to be known as the kinder and gentler sex? Care to guess what happens when a couple of Alpha males wish to curry favor from the same female? I haven’t even come close to what happens when the rumor mill goes into overdrive concerning what Johnny and Jill are doing.
I can tell you a long litany of anecdotal stories related to when units I commanded came into close proximity of women while in field environments and the often negative effects this had on the unit cohesion, but the talking heads would say that these social behaviors can be modified over time. Gentlemen and ladies , who argue for this approach I would put this forth as an argument. Time is not an ally.
For much of my career, while stationed stateside I was part of what was then known as the Rapid Deployment Force. It’s mission was to have boots on the ground anywhere in the known world within 96 hours. Do you think your high minded social experiment will be ready for deployment in 96 hours?
Oh no. Before any of you elitist social engineering snobs want to go tinkering with the front line unit dynamics I would suggest you spend about 30 days with them out in Injun country far removed from anything approaching civilization. If you want to destroy the greatest military in existence you just go ahead and allow women to join the Infantry.

Judge Stops Enforcement of DADT

October 12, 2010

U.S. District Judge Virginia Phillips has issued a universal injunction against the enforcement of “Don’t Ask, Don’t Tell” on the grounds that it violates the constitutional rights of service members. The DOJ has 60 days to appeal. Barring that, this effectively ends the policy.

A law passed by special interests will never bring dignity… especially to the interested members. Today Gay Marriage is just another DADT. When will we learn that Universalism discriminates? Dishonesty about our relationships within the military are as bad as dishonesty within a Marriage contract that ignores the intent and the inherent differences… and also the inherent needs of those that are different.

WikiLeaks Leaker Pvt. Bradley Manning Is A Gay Activist, May’ve Sought Revenge For "Don’t Ask, Don’t Tell"

August 4, 2010

“The revelations of Manning’s openly pro-homosexual conduct suggest that a more liberal Department of Defense policy, in deference to the wishes of the Commander-in-Chief, had already been in effect and has now backfired in a big way. The result could be not only the loss of the lives of U.S. soldiers, as a result of the enemy understanding U.S. intelligence sources and methods, but damaged relations with Afghanistan and Pakistan and a possible U.S. military defeat in the region as a whole.” – Accuracy in Media 
The suspect in the leaking of classified military files, Spc. Bradley Manning,  voiced his disgust with US Army commanders and U.S. “society at large” on his Facebook page just prior to his alleged downloading of thousands of secret documents, according to the British news media.
According to one story appearing in Britain’s The Telegraph,  Manning, who served as a US Army intelligence analyst, became depressed after a break-up with his homosexual campanion. He also wrote: “Bradley Manning is not a piece of equipment,” and quoted a joke about “military intelligence” being an oxymoron. 
Manning, who is openly homosexual, began his gloomy postings on January 12, saying: “Bradley Manning didn’t want this fight. Too much to lose, too fast.”
The 22-year old Manning is awaiting court martial as the primary suspect in the leaking of more than 90,000 secret documents to creator Julian Assang, who in turn posted the documents on his web site. 
The secret documents subsequently appeared in major U.S. newspapers in a security breach which Pentagon officials say has endangered the lives of serving soldiers and Afghan civilians.

Gay Arabic Speakers in the Military

June 3, 2009

Should Madison Avenue Public Relations help fight for America if they speak Arabic?